President Trump gave two gifts Friday to the antiabortion movement, which, not in the least bit coincidentally, is a constituency he’s counting on to help him win in November. One was his appearance at the annual March for Life rally in Washington, making him the first sitting president ever to attend the nation’s premier antiabortion event. The other, more consequential gift was the ultimatum his administration gave to the state of California: Stop requiring insurers to provide coverage for abortions in 30 days, or you’ll lose federal funding.
That’s no small threat; just for example, the feds cover almost 80% of the cost of the state’s $100-billion Medi-Cal program. But it’s also an outrageous threat: The administration doesn’t have the authority to punish California for the protections it gives to reproductive rights, which are fully consistent with the requirements laid out by Congress.
The timing of the administration’s announcement suggests that Trump, a lapsed supporter of abortion rights who once said he was “pro-choice in every respect,” was just looking to make a big splash among the antiabortion activists at the march. But if the effort proves to be more than just a publicity stunt with no follow-up, it will be up to California Atty. Gen. Xavier Becerra and the courts to remind the president about the limits of his power.
Reproductive rights are valued so highly in California that they are enshrined in the state Constitution. (In fact, state courts recognized a woman’s right to an abortion four years before the U.S. Supreme Court issued its landmark decision in Roe vs. Wade.) State law also requires state-regulated health insurers to cover all “basic healthcare services” in their plans, which state officials have interpreted to include abortions. Significantly, however, the law does not apply to self-funded insurance plans offered by employers, which are regulated by federal law. Nor does it apply to doctors, hospitals and other healthcare providers, who can decline to offer abortions for religious reasons.
A small group of religious-affiliated employers have challenged the state’s requirement, saying state regulators had forced insurers to cancel plans that didn’t provide coverage for elective abortions. As a consequence, they say, they’re forced to pay into an insurance pool that finances abortions they find abhorrent. While every state and federal court that has taken up the issue has ruled against these employers, the Trump administration has proved to be more sympathetic. On Friday, the Health and Human Services Department’s Office for Civil Rights declared that California was violating the Weldon amendment, a law that bars certain federal dollars from flowing to governmental agencies that discriminate against any “healthcare entity” because it doesn’t provide or pay for abortions.
This is yet another effort by the administration to extend the conscience protections Congress provided, which were designed to shield people from performing or directly paying for abortions against their will, to cover more and more people, including those who don’t want to be even indirectly involved. But in the case of the Weldon amendment, they don’t seem to have a leg to stand on. The amendment, like California’s law, applies to insurers, not their customers. And in the one instance where an insurer in California has sought to offer a policy that did not cover elective abortions except in the cases of rape, incest or a threat to the mother’s life, the state granted the insurer the exemption.
Yet there’s no consistency to the administration’s actions on healthcare. Trump’s HHS has gone to great, even excessive, lengths to free states of federal oversight of Medicaid so they can make healthcare available to fewer people. But they want more oversight to stop California from providing access to reproductive healthcare to more of its residents. And giving the state 30 days to change a widely supported law or lose an unspecified but potentially huge amount of federal aid is ridiculous.
California employers who want to distance themselves from abortion don’t have to buy a state-regulated plan — they have other options. But rather than steering those employers toward a solution, the Trump administration is picking a fight with California to score points with his base. As usual, the administration is wrong on the law and on the policy.